Gray v. State

• Decision Date: 16 November 1977
• Docket Number: No. 50159,50159
• Citation: 351 So.2d 1342
• Court: Mississippi Supreme Court
• Parties: Jimmy Lee GRAY v. STATE of Mississippi.

Page 1342

351 So.2d 1342

Jimmy Lee GRAY v. STATE of Mississippi.

No. 50159.

Supreme Court of Mississippi.

Nov. 16, 1977.

Louis Fondren, Jr., Pascagoula, for appellant.

A. F. Summer, Atty. Gen., by Billy L. Gore, Special Asst. Atty. Gen., Jackson, for appellee.

Before the Court En Banc.

SUGG, Justice, for the Court.

Defendant was convicted of capital murder and sentenced to death by the Circuit Court of Jackson County. We reverse and remand for a new trial.

This is the first death penalty verdict we have considered since Jackson v. State, 337 So.2d 1242 (Miss.1976) which was tried in two stages as required by Jackson, the first to determine guilt, the second to determine punishment.

Defendant assigns twenty-seven errors and in his fourteenth assignment of error he attacks the constitutionality of the statute under which he was indicted. This assignment of error is stated in the following language:

The Section 97-3-19(2) of The Mississippi Code of 1972 is unconstitutional in that it is vague in its terminology in requiring no design to effect death, so that no criminal intent upon the part of the Defendant is even essential in finding him guilty of Capital Murder under that section.

Defendant was indicted under section 97-3-19(2) Mississippi Code Annotated (Supp.1977) which reads as follows:

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:

(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson or robbery, or in any attempt to commit such felonies; . . .

Defendant's main argument is that the language contained in subparagraph (e), "When done with or without any design to effect death," is so vague that it is constitutionally deficient. This argument overlooks the other provisions of the statute under which he was indicted. The statute requires, (1) that a person kill a human being without authority of law, (2) while such person is engaged in the commission of the crime of rape, burglary, kidnapping, arson or robbery, or in any attempt to commit such felonies. The statute is not vague and simply defines the crime of capital murder as the killing of a human being without authority of law when engaged in the commission of the crime of kidnapping and the other felonies enumerated therein. We believe that the intent of the legislature in enacting the statute was to save the lives of victims of crimes. If the perpetrators of the crime of rape, burglary, kidnapping, arson or robbery know there is a possibility they will suffer the death penalty for killing their victims, such knowledge may, and probably will, deter such persons from taking the life of the victim of the crime. We perceive no constitutional infirmity because the statute clearly defines the elements of the crime and the indictment charged each element set forth in the statute.

Three errors occurred during the guilt stage of the trial which require reversal. The first error was the trial court refused to permit defendant to argue his case to the jury. During the argument at the guilt stage of his trial defendant requested permission to "make a statement to the jury." In effect, defendant was requesting the right to argue his own case and his request was erroneously denied. Mississippi Constitution Article 3, section 26 (1890) provides in part:

In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, . . .

The refusal to permit defendant to argue his case is in direct violation of the above constitutional provision and requires reversal.

The second error was permitting the state to show that defendant was on parole which was simply another way of showing that he had been convicted of another crime. The defendant did not testify at the first stage of his trial so evidence that defendant was on parole was not admissible for the purpose of impeaching his testimony under section 13-1-13 Mississippi Code Annotated (1972). It is well settled in this state that proof of a crime distinct from that alleged in an indictment is not admissible against an accused. There are certain recognized exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge. See, Smith v. State, 223 So.2d 657 (Miss.1969), cert. denied, 397 U.S. 1030, 90 S.Ct. 1274, 25 L.Ed.2d 542 (1970); Cummings v. State, 219 So.2d 673 (Miss.1969), cert. den. 397 U.S. 942, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970). We have numerous cases on this point, but the fact that defendant was on parole does not fall within any of the recognized exceptions. It was therefore error to permit the state to prove that the defendant was on parole at the guilt stage of the trial. A prior conviction "of another capital offense or of a felony involving the use or threat of violence to the person" is admissible at the second stage of a trial for a capital crime as an aggravating circumstance to be considered by the jury in determining punishment. Miss.Gen.Laws Ch. 548, § 5(b) (1977).

The third error was the testimony of an officer who was permitted to state that he asked the defendant if he had ever taken the little girl who was the victim in this crime and a little boy under a bridge at Bartlett Street. Initially an objection to the testimony was overruled but later sustained; however, the officer further testified that defendant stated he had never taken the children under the bridge but found them there while walking in the area. The officer stated that, at this time, he determined the defendant should be taken to the police station for questioning. This evidence, together with the evidence that the defendant was on parole was especially damaging and deprived defendant of a fair trial. The evidence should have been confined solely to the question of his guilt or innocence of the crime with which he was charged. The only purpose for introducing this evidence was to prejudice the jury by inferring that defendant was a child molester.

At the punishment stage of the hearing the court required the defendant to proceed before the state. This was error because the state has the burden to prove, not only the guilt of the defendant, but also to prove aggravating circumstances as set forth in Miss.Gen.Laws Ch. 458 (1977). This is error which requires reversal of the punishment stage of the trial.

Further in the punishment stage the court limited the argument of defendant's counsel to twelve minutes. This was clearly an abuse of discretion because this stage of the trial is for the purpose of determining whether defendant will live or die and a defendant should be given ample time to fully argue this important question. The court also limited the content of the argument of defendant's counsel. The trial judge should not interfere with argument unless counsel clearly and conclusively exceeds the legitimate field of the argument. In the case of Nelms & Blum Co. v. Fink, 159 Miss. 372, 131 So. 817 (1930) this Court stated, with reference to argument of counsel, the following:

Counsel necessarily has and must have to serve his function and office, a wide field of discretion. He may comment upon any facts introduced in evidence. He may draw whatever deductions seem to him proper from these facts, so long as he does not use violent and abusive language, and even in many cases invectives may be justified and even called for, as eloquently pointed out by Chief Justice WHITFIELD in Gray v. State, 90 Miss. 235, 43 So. 289. Counsel is not required to be logical in argument; he is not required to draw sound conclusions, or to have a perfect argument measured by logical and rhetorical rules; his function is to draw conclusions and inferences from evidence on behalf of his client in whatever way he deems proper, so long as he does not become abusive and go outside the confines of the record. Usually when the argument is considered as a whole it is found consistent and logical and frequently eloquent. Some of the greatest speeches in our history have been made within the courthouse. As has been said, the court cannot control the substance and phraseology of counsel's argument; there is nothing to authorize the court to interfere until there is either abuse, unjustified denunciation, or a statement of fact not shown in evidence.

Counsel may draw upon literature, history, science, religion, and philosophy for material for his argument. He may navigate all rivers of modern literature or sail the seas of ancient learning; he may explore all the shores of thought and experience; he may, if he will, take the wings of the morning and fly not only to the uttermost parts of the sea but to the uttermost limits of space in search of illustrations, similes, and metaphors to adorn his argument. He may reach the uttermost heights of attainable eloquence, soar into the empyrean heights where his shadow may fall on the loftiest mountain top, as the eagle in its loftiest flight. He may borrow from every source, modern and ancient, such materials as he needs for his argument. He may clothe the common occurrences of life in the habiliments of poetry and give to airy nothings a habitation and a name. He may weave of words a rhetorical bouquet that enchants the ear and mesmerizes the mind. He may make the learning of the ages the servant of his tongue. His argument may be as profound as logic and learning can make them. He may give wing to his wit and play to his...